Published On : Wed, Sep 13th, 2017

In suing Guha is BJP accepting that it is ‘legally’ also a part of the Sangh Parivar? By Sunita Mudaliar- Executive Editor

Nagpur: The Bharatiya Janata Party Yuva Morcha has served a legal notice to historian Ramachandra Guha for referring to the ‘Sangh Parivar’ while condemning the killing of journalist Gauri Lankesh in an interview to an online portal and in an article to a newspaper.

The 5-page legal notice, issued on behalf of BJP Yuva Morcha state secretary Karunakar Khasale, said “defamatory, baseless and false allegations” were made by Guha in his utterances and writing. The notice calls on Guha to categorically and clearly apologise publicly and also to communicate the apology directly to Khasale and his organisation within three days, failing which civil and criminal defamation cases will be filed against him.

What Did Guha say?

In his interview to Scroll.in on September 6 (a day after Gauri Lankesh’s murder) from overseas, Guha had said: “It is very likely that her murderers came from the same Sangh Parivar from which the murderers of Dabholkar, Pansare and Kalburgi came.”

For this statement the BJP Yuwa wing is suing him for those Civil and Criminal defamation!

What seem like the pitfalls?

First of all, with the stature of Guha, who is a Padma Bhushan awardee, trying to take him down will not win Brownie points with many. He is not ANY journalist; he is an academician of international stature and a reputed author too. He is also known to be very close to former P.M. Vajpayee.

No wonder Guha’s response to the notice was this:

His posts on Twitter in response to the notice, read: “Atal Bihari Vajpayee said the answer to a book or article can only be another book or article. But we no longer live in Vajpayee’s India.” An hour later, he tweeted again: “In India today, independent writers and journalists are harassed, persecuted, and even killed. But we shall not be silenced.”

As another reputed journalist Shekhar Gupta tweeted: “Wrong and unwise of BJP to answer a Critic with libel. Besides the fact that @Ram_Guha piece doesn’t look like what courts will find libellous.”

But we would like to point to some legalities too here:

For instance, Who Can Sue For Defamation
In order to be actionable, a defamatory statement must be “of and concerning” the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her.

Now Guha only said the ‘Sangh Parivar’ – he did not mention BJP at all. So is BJP accepting that it is ‘legally’ also a part of the Sangh Parivar? If it is, it should clarify if it believe in Sangh ideology of Hindutva and Akhand Bharat or the Constitution of India?

More importantly, what constitutes libel and defamation?

There can be no better treatise on it than this piece from Wall Street Journal:

Standing out is the threat of defamation action, which is being doled out with high frequency against accusers of various stripes. The frantic cries of Shakespeare’s Cassio in Othello ring loudly: “Reputation, reputation, reputation! O! I have lost my reputation. I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!”

No doubt this flurry of threatened libel action is good for lawyers, but it also offers an opportunity to assess how and in what measure — if at all — our public discourse and criticism should be curtailed or snipped by the clippers of defamation law. Defamation is a legal wrong emerging from an act of injuring a person’s reputation and sullying their character without lawful justification or excuse.

Libel and slander, both forms of defamation, are creatures of English common law, but they are not treated as distinct from each other in Indian jurisprudence. India offers the defamed a remedy both in civil law for damages and in criminal law for punishment. This is highly unusual since defamation as a crime is almost nonexistent anywhere in the world. While civil law for defamation is not codified as legislation and depends on judge-made law, criminal law is in the Indian Penal Code (section 499 creates a criminal offence of defamation.)

In a civil action, the claimant needs to prove that the statements injured the person’s reputation and were published. The onus then shifts to the defendant to prove that the imputations or statements were either true, or amounted to fair comment, or were uttered or stated in circumstances offering absolute or qualified privilege like Parliamentary or judicial proceedings.

In criminal law, the burden rests on the prosecution to prove beyond reasonable doubt that there was an offence of defamation committed and there was intent to do so.

Guha, only needs to prove what he said was fair comment, how can that be denied?

As someone close to the RSS dispensation commented to the undersigned,

‘May be legally Yuva wing could do it, but ethically it is not right.”

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Sunita Mudaliar - Executive Editor
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